The opinion of the court was delivered by This is a direct appeal in a criminal case by Edwin R. Egbert who was found guilty by a jury of murder in the second degree, K.S.A. 21-3402, as a lesser included offense of the charged crime of first degree murder. He was sentenced to imprisonment for a term of not less than five years nor more than life. He claims that the trial court erred in its jury instructions and in the admission of certain evidence. The defendant and the victim, Janet Egbert, were married in 1965 and had one child who was 9 years old at the time of this tragedy. Marital problems had arisen. On the evening of January 3, 1978, Janet left the home about 6:30 o'clock p.m. with a friend, Debra Garner. They went to Debra's parents' house for dinner, then stopped at a local bar, the homes of some friends, and their place of employment, all for short visits. Meanwhile, the couple's minor child became ill, and defendant unsuccessfully tried to locate his wife. Moments after Janet returned home, about 11:30 o'clock p.m., she was shot in the back, resulting in her immediate death. Upon trial, the defendant contended that Janet stumbled over her purse, and in attempting to arise from the floor, she grabbed hold of defendant's loaded gun, which discharged accidentally.
